Winston Blake wrote:Hmm, this is meaningless to me, and anyone else not versed in American history. Could you describe briefly what Jefferson and Hamilton actually favoured?
When George Washington was first elected to the Presidency, he appointed Alexander Hamilton (an important figure in the nascent Federalist Party, and a noted nationalist) his Secretary of Treasury and Thomas Jefferson (an important figure in the nascent Democratic Party, and a noted republican) his Secretary of State. The proto-Federalists won large majorities in the House and Senate and Hamilton went about trying to implement the fiscal program of his party (rather, his faction within his party). One aspect of that program was the establishment of a national bank similar to the Bank of England (and monopoly banks in several of the states at the time), which wasn't a power explicitly mentioned in the US Constitution. Washington was curious about the Constitutionality of such a bank, so he asked Hamilton and Jefferson to submit opinions on the matter. Jefferson answered first, IIRC.
He argued that the 'Necessary and Proper' clause (Article I, Section 8, Clause 18 of the US Constitution) implied that the power to do so actually was granted by the US Constitution. This was, essentially, where the doctrine of implied powers was innovated. According to Hamilton, if a certain power was useful towards accomplishing an actually granted power, then the Necessary and Proper Clause implied that the former power was delegated as well. Since the Constitution grants to the US Government the powers to regulate commerce, to coin money, and to regulate it's value, a useful institution towards this end such as the Bank must be Constitutional.
Jefferson's argument had been that the word 'Necessary' actually implies (as it does in the formal logic educated men of the period would have been familiar with) something
without which a power
cannot have any effect. Essentially, powers without which the explicitly granted power would be null and void. The important difference comes in when you examine the difference between this and useful: A useful power is
sufficient to an end -- its presence establishes a condition -- but not always necessary. There might be another way of establishing the condition, or the power might be an ancillary part of its establishment, or it might be only necessary to establishing the condition in accordance with some specific sub-condition.
Jefferson also mentions as a side-comment the, to me, far more important argument against the Constitutionality of the Bank: That such a thing was actually discussed at the Philadelphia convention and explicitly voted down.
I made a post a while ago built around a reductio ad absurdum of Hamilton's argument by essentially directly quoting the minutes of the Philadelphia Convention proving that the actual Framers of the Constitution denied the US Government the powers of incorporation and printing paper money. My reductio was that, if the Necessary and Proper Clause could imply the granting of powers that were
explicitly denied to the Government by the Framers of that same clause, then there's essentially no limit to what the Necessary and Proper Clause can grant in terms of powers. The US Congress could pass a law calling for the execution of an innocent person as long as it could tie the deed to the pursuit of some other, explicit power, and Hamilton's argument could stand for it just as well as it did for the establishment of the Bank.
I could post the post here, if you like, I did save it.
Anyway, Hamilton's argument won in the end, not because it was sounder (it wasn't), but because Washington himself was a nationalist, and thus actually agreed with Hamilton about expanding the powers of the US Government, and because Hamilton was his pet appointee. Both him and Hamilton had served together and Hamilton had actually been his aide-de-camp (IIRC) during the Revolution. He trusted his judgment more or less without question. Moreover, Jefferson had no military history and had actually fled from Richmond at the approach of a British army. Washington, like many military men in history, had a thing about people he perceived as cowards: He didn't like them or trust them. That Jefferson had been against the ratification of the Constitution initially (he was one of the men who had held out until a Bill of Rights was promised) and was a republican/true federalist didn't help things.
So, yeah. Politics won over Law and have been pretty consistently for most of our history. The Constitution as it exists is flawed, not in the sense that it doesn't grant the Government enough power, or that it grants too much, but rather that it made it too easy for powerful men near the center to circumvent it more or less entirely. It was designed to prevent one man or one faction from capturing the entire government and, on the latter goal, it has comprehensively failed. It began failing
immediately after adoption, although it has obviously become much, much worse since then. Nowadays the Government can ignore it pretty much completely where there isn't a large, well-funded, powerful constituency for a particular clause of section, like with the First and Second amendments.
